Developments in Workplace Law by Nathaniel K. Charny & Russell G. Wheeler, Attorneys at Law

Thursday, October 2, 2008

Ollie's Barbecue and the Interstate Commerce Clause

If someone asked me what I considered to be one of the most important cases decided by the U.S. Supreme Court, I would answer Ollie's Barbecue. (The case's official name is Katzenbach v. McClung (1964).)

It was the year 1964 and Ollie's Barbecue had been a local landmark in Birmingham, Alabama since 1927, when it first opened; loved by locals for its signature barbecue sauce and best-of-the-south barbecue pork and beef. And, also since it opened in 1927, Ollie's Barbecue had a strict rule against serving Blacks in the dining room. At Ollie's Barbecue, it was "take out service only for Negroes."

The United States Congress passed the Civil Rights Act of 1964, which was effective on July 2, 1964, and which prohibited such disparate treatment based on race. The law states:

"[A]ll persons shall be entitled to the full and equal enjoyment of the goods and services of any place of public accommodation without discrimination or segregation on the ground of race, color, religion, or national origin." Section 201(a) of Title II.

The Civil Rights Act specifically applied to any "restaurant . . . principally engaged in selling food for consumption on the premises . . . if it serves or offers to serve interstate travelers or a substantial portion of the food which it serves . . . has moved in commerce." Sections 201 (b) (2) and (c).

Ollie's Barbecue refused to desegregate its dining room and refused to serve anyone but whites. The restaurant did not deny that it was "principally engaged in selling food for consumption on the premises." Nor did the restaurant deny that it "serves or offers to serve interstate travelers." What Ollie's Barbecue argued was that Congress exceeded its authority under the U.S. Constitution in even passing the Civil Rights Act of 1964 and attempting to have it apply to a small local restaurant like Ollie's Barbecue.

The Supreme Court disagreed and found that the Congress acted within its powers -- and Ollie's Barbecue was forced to serve non-whites in its dining room.

The basis of the Supreme Court's decision speaks to the important question of the power of congress to regulate private activities. The U.S. Constitution, written on behalf of "We the People," gives Congress certain powers and states explicitly in the 10th Amendment that the federal government enjoys only those powers expressly authorized by the U.S. Constitution and that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In other words, if "We the People" did not authorize the federal government to regulate in a certain area, such attempts at regulation are unconstitutional.

In Article I, Section 8 of the Constitution, "We the People" gave Congress the authority "[t]o regulate Commerce . . . among the several States" and Clause 18 of the same Article grants Congress the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . . ."

Ollie's Barbecue argued that it was a small local restaurant that barely impacted interstate commerce. Ollie's Barbecue argued to the Supreme Court that "We the People" did not intend to give Congress the authority to regulate such a business.

Desperate to continue their segregationist ways, Ollie's Barbecue argued that even if the law may be appropriately applied to some restaurants it was unconstitutional for Congress to say it applied to all restaurants without a case-by-case analysis. The Supreme Court rejected this argument as well.

"[Ollie's Barbecue" contend[s] that Congress has arbitrarily created a conclusive presumption that all restaurants meeting the criteria set out in the Act 'affect commerce.' Stated another way, they object to the omission of a provision for a case-by-case determination - judicial or administrative - that racial discrimination in a particular restaurant affects commerce . . . . Here, [] Congress has determined for itself that refusals of service to Negroes have imposed burdens both upon the interstate flow of food and upon the movement of products generally. Of course, the mere fact that Congress has said when particular activity shall be deemed to affect commerce does not preclude further examination by this Court. But where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end. The only remaining question - one answered in the affirmative by the court below - is whether the particular restaurant either serves or offers to serve interstate travelers or serves food a substantial portion of which has moved in interstate commerce."

The Supreme Court concluded with a generous declaration about the constitutionality of the Civil Rights Act of 1964:

"The power of Congress in this field is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitation it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere. The Civil Rights Act of 1964, as here applied, we find to be plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude. We find it in no violation of any express limitations of the Constitution and we therefore declare it valid."

Things turned out just fine for Ollie's Barbecue, notwithstanding its contention before the Supreme Court that serving Blacks in the dining room would devastate their business. In fact, business thrived for another 35 years, until Ollie's Barbecue moved to a suburban location in 1999, and closed down two years later, in 2001.

About Nathaniel K. Charny

In addition to his private law practice in Rhinebeck, New York, Nathaniel K. Charny serves as Special Litigation Counsel to Workers' Rights Law Center, in Kingston, New York and Farmworker Legal Services, in Rochester, New York. Nathaniel is Of Counsel to union/employee-side law firm Eisner & Mirer, P.C., in New York City and is a Regional Attorney for CSEA, Local 1000, AFSCME.
Nathaniel's practice encompasses all aspects of workplace law, representing individuals, union clients and small businesses in litigation, administrative proceedings, collective bargaining and arbitration, as well as providing institutional clients with day-to-day counsel.